Written by Brabners LLP
Useful input from the Employment Appeal Tribunal on referring to previous incidents
The recent case of NHS 24 v Pillar considered whether it had been unfair for an investigation into an employee’s misconduct to include earlier incidents of misconduct that had not resulted in any disciplinary action. The Employment Appeal Tribunal (“EAT”) confirmed that the inclusion of previous similar incidents in an investigation into the employee’s misconduct did not render the dismissal unfair.
A dismissal is fair under s98 of the Employment Rights Act 1996 where an employer can show that they believed the employee to be guilty of misconduct, that this belief was based on reasonable grounds and that at the time this belief was held, the employer had carried out as much investigation as is reasonable. Any decision to dismiss must also fall within the range of reasonable responses that, in the circumstances, a reasonable employer may have adopted.
In the NHS 24 v Pillar case, Ms Pillar was employed by NHS 24 as a Nurse Practitioner. Her role included delivering care and medical advice over the telephone. She was dismissed from her role in 2013 for gross misconduct following an incident where she failed to ask appropriate questions of a patient having a heart attack and referred them to an out-of-hours GP service. She had been involved in two previous incidents of a similar nature, both of which had been dealt with by way of additional training rather than disciplinary action.
Although, the previous incidents were included within the investigation report for her disciplinary hearing for the third incident, after which she was dismissed for gross misconduct. Ms Pillar brought a claim for unfair dismissal and argued, among other things, that the reference to earlier incidents of misconduct should not have been included when considering her dismissal. In particular, Ms Pillar referred to the fact that the earlier incidents had never led to disciplinary action.
Ms Pillar first brought her claim in an employment tribunal. The tribunal found in favour of Ms Pillar and ruled that it had been unreasonable for the employer to include the details of previous incidents and that as a result, her dismissal was unfair.
NHS 24 appealed to the EAT. The EAT allowed the appeal and overturned the previous decision of the tribunal. Holding that the dismissal was fair, they noted that the initial tribunal’s view that the dismissal was procedurally unfair because the employer had carried out an investigation that was “too thorough” was perverse. It was novel for a claim to be brought because an investigation contained too much information, as opposed to not enough – especially when the information gathered was relevant to the disciplinary proceedings in question.
This case gives some welcome clarification on the extent to which previous conduct can be considered by an employer when deciding whether to dismiss. In particular, the case highlights those earlier similar incidents do not need to result in disciplinary action to be relevant.
It also acts as a reminder that, when carrying out an investigation into misconduct, employers should be careful what they include in any report. In particular, any previous incidents referred to should be relevant to the current disciplinary proceedings in question.
Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.